Twenty-first-century politics has inspired a new mode of interstate rivalries and reprisals consisting not of the tariffs that plagued the Founding but rather of regulations with significant impacts outside the enacting state’s borders. Employing the dormant Commerce Clause doctrine of extraterritoriality, the Supreme Court has limited overbroad state regulations, but the extraterritoriality doctrine is unclear both in its normative grounding and practical application. This Article proposes a conceptual framework that situates the prohibition of extraterritoriality as an aspect of horizontal federalism. Our conceptualization of extraterritoriality enables us to distinguish it from two dormant Commerce Clause doctrines with which it is often conflated—nexus and “undue burdens” on interstate commerce. We also propose several approaches to deciding extraterritoriality cases.
Many disdain the use of consequences in legal interpretation. Yet it turns out that interpreters have long used consequences, particularly...
When governments issue bonds they usually have to provide plenty of disclosure to entice investors. These days this often includes information on the...
Following the Supreme Court’s momentous decision last term in Loper Bright Enterprises v. Raimondo, much of the scholarly discussion has focused on...
Nationwide injunctions keep the Trump administration from violating federal law during the time it would take the US Supreme Court to intervene.
Trump v. United States is so intensely criticized that, in some quarters, it is at risk of being included in the anti-canon. It is alleged to be...
Virtue jurisprudence is an approach to normative legal theory that answers normative questions about law from a perspective that is centred on the...
Crosspollination between the transitional justice (tj) and business and human rights (B&H) fields has led to a growing scholarly focus on the role of...
The Supreme Court’s evisceration of the federal constitutional right to abortion has raised the specter of criminal and civil liability for abortion...
Trump v. United States’s discovery of broad immunity has rendered the presidency more imperial and unaccountable. This Article tackles four questions...
Until he joined the U.S. government in 1934, Robert H. Jackson had been a lawyer in private practice in Upstate New York who was admitted to the bar...
Although research suggests that countries' colonial experiences are associated with a range of contemporary outcomes, the link between colonial...
In a new paper, we present a novel theory of “purposeful enterprise” to explain why nonprofit enterprises survive and thrive. We define nonprofit...
CC/Devas (Mauritius) Limited v. Antrix Corp.: International Arbitration and Constitutional Avoidance
I suspect that CC/Devas (Mauritius) Limited v. Antrix Corp. Ltd. caught the eye of the Supreme Court because of an interesting constitutional question...
In the last few years, the Supreme Court has upended its doctrine of religious freedom under the First Amendment. The Court has explicitly rejected...
Academic and market interest in environmental, social, and governance (ESG) investing has grown markedly in recent years. Although less prominent, a...
During times of crisis, governments often consider policies that may promote safety, but that would require overstepping constitutionally protected...
In this chapter, we put forth a case study of Elon Musk's acquisition of Twitter. We detail the legal and contractual issues that arose as the parties...
The United States is undergoing a legal realignment, in that salient legal views recently associated with the right are now being espoused by the left...